On June 24, I published an essay about how women have little reason to celebrate the Fourth of July, as it didn’t do anything to change their status. I spent some time in that essay talking about the women’s Declaration of Sentiments passed by the first Woman’s Rights Convention in Seneca Falls, NY, passed on July 20, 1848. In that essay, I suggested that women should observe July 20th rather than (or perhaps in addition to, if you like fireworks and picnics) July 4th. At this time in our history, I am increasingly aware that the rights and protections of all Americans are under assault by the current Supreme Court. Today is July 20, and it seems like a good time to expand on this.
Reed v. Reed (1971) was the landmark Supreme Court case that for the first time ruled that the Equal Protection Clause of the Fourteenth Amendment prohibited differential treatment based on sex, even though that language does not appear in the Amendment. The precedent set by this case was used to oppose the passage of the Equal Rights Amendment, which read simply “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The country didn’t need a whole new amendment, the argument went, because the meaning of the 14th Amendment broadly afforded equal protection of the laws to women even though the original language did not.
Court Justice Antonin Scalia, who served on the Court from 1986 until his death in 2016, wasn’t shy about expressing his beliefs about this (or anything else). In a 2011 interview, he said the following about whether the 14th amendment protects against unequal treatment on the basis of sex:
"Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that . . . If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”
Scalia was promulgating an “originalist” interpretation of the Constitution, saying that because the people who enacted the 14th Amendment were concerned solely about the rights of freed slaves, any other interpretation of this amendment is invalid.
You’ll recall that Scalia’s seat was left vacant when he died in his sleep on February 13, 2016, and the Republican-controlled Senate (led by Kentucky Senator Mitch McConnell) refused even to consider President Obama’s nominee for the seat, Merrick Garland, because of a made-up rule about not filling a seat during an election year. The seat was vacant for more than a year before Neil Gorsuch was confirmed to this seat.
Gorsuch is part of a Supreme Court “originalist” majority (including Alito, Kavanaugh, Barrett, Thomas, and sometimes Roberts) that spent this past term systematically attacking Supreme Court precedents that do not meet their “originalist” standards. Their strict interpretations of gun rights, abortion, and the powers of the Federal Government (among other issues) seek to undo a century of jurisprudence that has allowed the meaning of the Constitution to evolve from an 18th-century document written by rich white men to the kind of foundational document necessary for a vibrant, modern society.
The argument made by originalists requires a narrow reading of Article I Section 8 of the Constitution, which specifies the powers given to the Federal government, and an equally narrow reading of the last clause of this amendment, which gives Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution” the other federal powers granted by the Constitution. Often called the “necessary and proper” clause or the “elastic clause,” this is the constitutional source of much of the power of the modern Federal government, as it has allowed the government to pass anti-discrimination laws, labor laws, and laws regulating other government actions. The Constitution Center says that this clause “just might be the single most important provision in the Constitution.”
The Ninth Amendment to the Constitution bolsters the case for an expansive view of individual rights. Here’s what it says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The combination of the necessary and proper clause and the Ninth Amendment has underpinned much of the expansion of individual rights as well as Federal government scope and power that we have seen over the past century. The originalists want to reduce the applicability of these parts of the constitution and to return to a political system where power rests primarily in the states.
So what’s the status of the Equal Rights Amendment, which Scalia indicated was the only way the Constitution would guarantee equal rights for women?
It was passed by Congress in 1971; it included a 7-year deadline to acquire ratification by ¾ (38) of the state legislatures.
During 1972, 22 states ratified, and eight states joined in early 1973. Over the next three years, five more states ratified, for a total of 35.
As the 1979 deadline approached, advocates became concerned that the required three additional states would not ratify in time. At the same time, five states that had ratified had subsequently adopted legislature purporting to rescind those ratifications.
Congress voted in 1979 to extend the deadline until 1982.
In 1982, the ERA was still three states short of the required 38.
Things have changed a little in the last 40 years. Three more states ratified the amendment (Nevada in 2017, Illinois in 2018, and Virginia in 2020) to make up the required 38 states. On January 21, 2021, a joint resolution was introduced to both houses of Congress to remove the deadline and allow for the ratification of this amendment. Here’s what this Resolution said:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That notwithstanding any time limit contained in House Joint Resolution 208, 92nd Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution shall be valid to all intents and purposes as part of the Constitution whenever ratified by the legislatures of three-fourths of the several States.
This resolution was passed by the House in March of 2021. The Senate has not considered the resolution.
Some people have suggested a “Begin Anew” strategy, avoiding the Constitutional uncertainty of removing the deadline language and dealing with states that rescinded their original ratification of the amendment. A “new” amendment (whose language was the same as the original) was introduced in the House in February 2021, but it has not been formally introduced in the Senate during the 117th Congress (the current Congressional term).
Rights for women are protected by the state constitutions in 25 states – which means these rights are not protected in 27 states. The Southern Legal Council reports that the constitutions of 168 countries of the world reportedly affirm equal rights for women. The United States Constitution should provide this protection as well. It is ludicrous that it doesn’t.
It seems impossible that something as essential as equal rights for women (who make up 50.5% of the population) is even up for discussion. But the recent Supreme Court decisions should alarm everyone in America. A broadened view of the 14th amendment is the basis for equal treatment for other racial groups (Latinos, indigenous people, and Asians) not considered in 1868, as well as for old people, young people, immigrants, religious minorities, LGBTQ individuals, disabled people, and probably others that I can’t think of right now. It is the basis for the protection of a fetus.
If protection of these rights is placed back in the hands of the individual states, we will return to an America where individual rights are determined by where people live. This is the way it was for blacks in America before the Civil War, and we saw how well that worked out. People do not often have the luxury of moving to a different state to make sure their rights are protected if they fall into any kind of “unprotected” category. It is preposterous to believe that this is the appropriate solution to the denial of equal protection of the law in the 21st century.
Thanks for a clear, concise summary of the current situation, Karen. I’m reminded of something Marcus Aurelius wrote hundreds of years ago. “The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane.” I don’t know how many people read your column, Karen, but every time you write a column like this, you keep people like me awake, aware and away from those who have fallen asleep in the land of insanity. We owe you! 😎
Great piece!